On the Apparent Complexities of Charging Roger Stone

As I disclosed last month, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.

Last night, Sam Nunberg reportedly told Ari Melber he thought Roger Stone would be indicted on “broad charges of conspiring against America … backed up by some financial charges.” That has led to some Tweet lawyering suggesting that such ConFraudUS charges would arise naturally from Stone’s known interactions with WikiLeaks and Guccifer 2.0.

I’m certain things are not as simple as that. If they were, Mueller would not have spent much of the last five months focusing on testimony relating to Stone, including (this list doesn’t include at least one other person whose Stone-related testimony is not public):

March 27: Ted Malloch stopped at Logan airport, questioned about Stone and Wikileaks, devices seized, subpoenaed to appear before grand jury on April 13 (the grand jury appearance was rescheduled or canceled)

May 25: Mueller’s team follows up on subpoenas; Dearn asks for more time to comply “given the volume of responsive documents;” Mueller agrees to adjourn document production to June 5 and appearance to Jun 8

While some of these witnesses were clearly asked about Wikileaks, others were reportedly asked about meetings involving Rick Gates, Stone’s finances, and even whether he fathered Davis’ two year old child. And while Stone’s buddies claim Mueller is generally investigating his finances, Mueller’s focus seems to be on the recipients of expenditures from Stone’s SuperPAC.

Clearly, whatever question Mueller is investigating (and whatever potential crimes he showed probable cause of, if he indeed seized the contents of Stone’s phone back in March) is more complex than just chatting up Assange or Guccifer 2.0. Indeed, even the discussions we know of show Stone involved in — or at least entertaining — more than that. That said, Mueller will need to prove that whatever Stone did involved the understanding that he was accepting things of value (or even, soliciting the active help) from foreigners or other illegal actions.

That’s one reason why the circumstances of Stone’s flip-flop in early August 2016, in which Stone went from admitting that the DNC hack was done by Russia to claiming it was not seemly in one day in which he was in Southern California is so important: because he established a contemporaneous claim he has relied on to excuse any coordination with Guccifer 2.0 and WikiLeaks. Given the import of Stone’s flip-flop, I find it interesting that so much of the funding for his SuperPAC came from Southern California, especially from John Powers Middleton. Did he meet with his donors when he orchestrated the flip-flop that makes it harder to argue his discussions and foreknowledge of Guccifer 2.0 and WikiLeaks events count as entering into a conspiracy to break one or several laws?

Whatever the circumstances of that flip-flop, from that point forward, Stone pushed several lines — notably the Seth Rich conspiracy — that would be key to Russian disinformation. A big chunk of his SuperPAC funds also spent on “Stop the Steal,” which may also tie to Russian disinformation to discredit the election.

One of the complexities Mueller may have spent months digging through may be whether and how to hold Stone accountable for willfully participation in disinformation supporting Russia’s larger efforts to swing the election to Donald Trump.

In March, when this focused pursuit started, Mueller wanted to know what the President knew about communication between Stone, his associates, Julian Assange, and Wikileaks. Since then, it appears the question has gotten more complex.

And along the way, a key Roger Stone aide has managed to stall three months on providing testimony.